Restoring the Integrity of Judicial Appointments: the Venice Commission's Opinion on Poland

The Venice Commission and Directorate General Human Rights and Rule of Law of the Council of Europe have issued an opinion addressing Poland's flawed judicial appointments made after 2018 reforms that undermined judicial independence. Contrary to the prevailing stance in Polish legal discourse, the opinion recommends individualized assessment by an independent body—while also allowing for grouping of similar cases—and the possibility of appeals. The Polish government now faces the challenge of designing a process that restores judicial integrity while upholding constitutional and international standards and avoiding further chaos in the Polish judiciary – writes Marcin Szwed

Introduction

On 14 October 2024, the Venice Commission and Directorate General Human Rights and Rule of Law of the Council of Europe (DGI) issued an opinion on "European Standards Regulating the Status of Judges." The opinion, requested by Poland’s Minister of Justice, examined optimal ways to regulate the status of Polish judges appointed post-2018. These appointments, according to rulings by Polish courts, the European Court of Human Rights (ECtHR), and the Court of Justice of the European Union (CJEU), are flawed, and as a result judicial panels including these appointees might fail to meet the standards of independent and impartial courts established by law required under European standards.

Background of Poland’s Judicial Appointment Crisis

The crisis around judicial appointments began in 2018 when the law changing the process for electing judicial members of the National Council of the Judiciary (NCJ) entered into force. This was part of the then-ruling populist-right-wing Law and Justice (PiS) Party’s sustained attacks on judicial independence. Their actions involved, among others, unlawful appointments of Constitutional Tribunal judges, reorganization of the Supreme Court and changes in the disciplinary system for judges.

The NCJ is a constitutional body mandated to safeguard the independence of courts and judges. One of its primary competences is to assess and propose candidates for all judicial appointments (including promotions of lower court judges to higher courts) to the President. It is composed of 25 members. Before 2018, 15 judicial members were elected by other judges, four were appointed by the Sejm (lower house of the Polish Parliament), two by the Senate, one by the President, and the others were ex officio members (the First President of the Supreme Court, the President of the Supreme Administrative Court, and the Minister of Justice).

The new law transferred the authority to appoint the 15 judicial members from judges to the Sejm, effectively allowing the parliamentary majority to influence judicial appointments, and also prematurely terminated the terms of all 15 incumbent judicial members of the NCJ. The reform was widely perceived as unconstitutional, although the Constitutional Tribunal, acting in a panel including one unlawfully appointed person, ruled that it did not violate the Constitution.

Doubts around the constitutionality of the “new” NCJ led to controversies around the status of all judges appointed with the participation of this body. In Poland, there is no official procedure for reviewing the validity of judicial appointments, but in 2020, the Supreme Court issued an interpretative resolution on the impact of the presence of judges appointed with the participation of the “new” NCJ in adjudicatory panels on the validity of court proceedings. According to the resolution, any Supreme Court proceeding involving improperly appointed judges was invalid, allowing for reopening of proceedings. For lower courts, the Court found that no automatic invalidity of proceedings was warranted, but an assessment was required to determine if the judge's appointment irregularities violated standards of independence and impartiality. The irregularities in the appointments of Supreme Court judges were subsequently examined by the ECtHR and CJEU, which found that panels including improperly appointed judges could infringe on a person’s right to a ‘tribunal established by law’.

Poland’s New Government Addresses Need for Reform

A situation in which the status of thousands of judges and their rulings can be questioned certainly threatens legal certainty. Unfortunately, during the PiS administration, no substantial reform was made to restore judicial appointments to constitutional and European standards. However, the political landscape shifted after the fall 2023 elections, in which PiS lost power. The new government faced the task of resolving the issue of irregularly appointed judges and their rulings, a challenge complicated by opposition from the President, who objected to questioning the status of judges he had appointed.

Regardless of presidential opposition, debates continued on the optimal way to address the flawed judicial appointments . . .

Regardless of presidential opposition, debates continued on the optimal way to address the flawed judicial appointments. Two main proposals emerged. The first, from the Association of Judges (Iustitia), argued that these appointments were legally ineffective. Iustitia’s draft law proposed reinstating judges to their previous positions (e.g., advocates, attorneys-at-law, notaries or judicial positions in lower courts) and filling vacated positions in new competitions, although with some exceptions regarding judges early in their careers (in particular former assessors: trainee judges allowed to adjudicate for a fixed period of time before receiving an appointment to a permanent position as a judge). To prevent a judicial crisis by suddenly removing a significant portion of the judiciary (newly appointed judges make up around 25 per cent of the judiciary), the draft proposed that judges promoted unlawfully to higher courts would be allowed to continue adjudicating in these courts for a period of two years under a so-called “delegation”. At the same time, Iustitia proposed that final rulings issued by irregularly appointed judges should generally be upheld; however, parties should be allowed to request reopening of cases provided that they had questioned the legality of a judge’s appointment at the time of the proceedings.

This concept faced criticism, particularly from the Helsinki Foundation for Human Rights (HFHR). The NGO argued that declaring all appointments invalid had no basis in the case law of Polish or European courts and could conflict with the Constitution and international standards, as well as potentially affecting thousands of rulings by such judges. Therefore, the HFHR proposed the introduction of a process of individualized verification of all appointments by an independent NCJ, which would validate judges deemed politically unaffected, while referring others to the Supreme Court for possible transfer or removal.

In light of these differing views, the Minister of Justice sought an opinion from the Venice Commission, posing four questions:

• 1. Is it permissible to invalidate ex tunc NCJ resolutions on judicial appointments?
• 2. Do improperly appointed judges have a right to seek judicial recourse, and if so, would the possibility to participate in the new competition procedures and challenge the results be sufficient?
• 3. Would the system of temporarily delegating improperly promoted judges to the positions they held on the basis of unlawful appointments to allow completion of their pending cases, for a period of two years, be permissible?
• 4. Should litigants challenging the independence and impartiality of improperly appointed judges have the right to contest final judgments rendered by such judges?

Before the Venice Commission and DGI issued their opinion, the Minister of Justice presented his own proposals for addressing these judicial appointments, aligning largely with Iustitia's approach but introducing a categorization of judges into three groups. Judges early in their careers (appointed to judicial positions after having served as assessors) would remain in their positions without any changes. Judges appointed with participation of the politicized NCJ who were actively involved in dismantling judicial independence would face not only removal or demotion, but also disciplinary proceedings. Others would also return to their previous positions, but if they did so voluntarily, on the basis of a special declaration, they could avoid disciplinary charges.

Venice Commission and DGI’s Recommendations to Restore Judicial Legitimacy

In their opinion, the Venice Commission and DGI asserted that ex tunc (retroactive) invalidation of judicial appointments through legislation would not be acceptable. According to the Commission and DGI, under the principle of the separation of powers, the legislature cannot independently assess the validity of judicial appointments. At most, it could regulate the consequences of such invalidity as determined by a competent judicial body. However, neither the case law of Polish courts nor the judgments of European courts unequivocally indicate that all new appointments are legally null and void. Under these circumstances, invalidating appointments by law would be tantamount to the legislature removing judges, which is impermissible.

Although Polish authorities have a degree of discretion . . . the process of restoring the rule of law itself should comply with rule-of-law requirements.

At the same time, however, the Venice Commission and DGI recognized the urgent need to regulate the status of all improperly appointed judges. Although Polish authorities have a degree of discretion in addressing this issue, they should observe certain minimum standards, as the process of restoring the rule of law itself should comply with rule-of-law requirements.

According to the Venice Commission and DGI, judges appointed through irregular procedures are not fully protected against removal, yet they retain some level of protection. Judicial appointments should thus undergo ‘some form of individual assessment’, with the assessment conducted ‘on the basis of pre-established criteria and procedures (including fair trial elements).’ Additionally, this evaluation should be carried out by a body independent of the government, and if it is not of a judicial nature, there should be an option for appeal to a court. However, this appeal to a court does not need to suspend the effects of the invalidation decision until the appeal is resolved.

Furthermore, according to the Commission and DGI, "individual assessment" does not have to entail a separate review of each of the more than 2,500 appointments in question. What matters is that the entire verification mechanism is ‘suitable for a fairly rapid settlement of the issue.’ To expedite the process, the Commission and DGI deemed it permissible to group similar cases and assess whole cohorts of appointments.

With regard to the permissibility of temporary delegation of judges, the Commission and DGI noted that certain transitional arrangements may be necessary to ensure the efficient functioning of the judiciary during the evaluation procedures. However, their application must be surrounded by appropriate safeguards to protect judicial independence.

Finally, the Commission and DGI also responded to the question concerning the regulation of judgments issued by improperly appointed judges. In this regard, it noted that allowing parties to proceedings to challenge final judgments due to irregularities in the composition of the court without any restrictions would threaten legal certainty. Therefore, the Commission and DGI deemed it necessary to introduce certain restrictions regarding both the time limits and grounds for such challenges. Regarding the latter, the Commission and DGI held that the right to question the validity of a final judgment due to the presence of a judge appointed on the recommendation of the post-2018 NCJ could be limited to cases in which this argument is 'accompanied by a claim of an impact on the specific proceedings.' The Commission and DGI also considered it permissible to further limit this right to cases in which parties raised concerns about the judge's irregular appointment at the time of the proceedings. However, this requirement should apply only to cases occurring after the first ECtHR ruling concerning the crisis around judicial appointments in Poland.

Legal versus Ethical Complexities

The conclusions of the Venice Commission and DGI's opinion are, in the author’s view, not particularly surprising. In its previous opinions on various issues related to the status of judges, the Commission also emphasized the need for individualized measures that can be subjected to judicial review, also reflected in ECtHR case law. The Commission and DGI applied these standards to the situation in Poland, even while acknowledging its unique character.

It was argued that individuals who entered competitions before a politicized NCJ acted unethically and thus keeping them in their positions would be unjust . . .

It is worth noting, however, that the opinion of the Commission and DGI significantly diverges from the prevailing stance in Polish legal discourse. The proposal to invalidate appointments by statute was supported by many prominent lawyers, driven not only by legal arguments but also ethical considerations. It was argued that individuals who entered competitions before a politicized NCJ acted unethically and thus keeping them in their positions would be unjust toward the independent judges who boycotted the politicized NCJ and opposed the unconstitutional actions of the government, sometimes at the cost of facing disciplinary sanctions. Meanwhile, the Venice Commission and DGI’s opinion does not refer to ethical principles but treats the issue of judges' status solely as a legal problem that should be resolved through legal procedures that meet certain minimum standards and avoid legal chaos. This approach is understandable: ethical violations are typically examined in individualized disciplinary proceedings rather than solved through the adoption of blanket ex lege measures. Were the Commission and DGI to endorse the removal or demotion of thousands of judges by law, it could set a dangerous precedent on a European scale.

The Venice Commission and DGI's opinion thus sets certain parameters within which the process for regulating the status of improperly appointed judges should operate, although it still leaves many unknowns.

Firstly, the Venice Commission and DGI’s opinion essentially does not address the criteria on which the assessment of appointments is to be based, simply noting they should be "pre-established." But what should these criteria address? Should they refer solely to the formal legality of the NCJ's actions? Or involve a more thorough examination of whether the nomination process was free from political manipulation which could cast doubts on the independence and impartiality of the appointees? Undoubtedly, since the Commission and DGI point out that invalidating individual appointments should be ‘based on the specific circumstances of each particular case,’ the evaluation process must go beyond concluding that because an appointment was made with participation of a defectively constituted NCJ, it is invalid. It seems, therefore, that the entire nomination procedure should be considered, particularly the presence of any political influences. However, since the Commission and DGI distinguish the assessment procedure for the validation (or not) of an appointment from any disciplinary actions, it would be unjustified, for instance, to consider the judge's behavior after receiving their nomination as part of the assessment.

Secondly, the grouping of similar appointment cases, as recommended by the Commission and DGI, could be problematic. In particular, one might wonder who should decide on the groupings—the legislature or the assessing body—and how to establish “similarity” between various appointments. Such decisions are crucial as they could determine the fairness of the entire process. Certainly, dividing all appointments into a few very large groups and treating all members of each group identically would contradict the principle of individualized assessment.

Thirdly, the very design of the procedure could also be problematic. The Commission and DGI suggest that it would be permissible to limit court involvement to review non-suspensive appeals against invalidation of appointments made by a non-judicial body. Undoubtedly, such a procedure could meet the standard stemming from Article 6 of the European Convention on Human Rights. However, under Article 180 of the Polish Constitution, a judge can only be removed from office or transferred against their will by a court decision. Therefore, in the author’s opinion, it would be unacceptable to reduce the court’s role to mere ex-post control. To ensure compliance with the Constitution, a possible non-judicial evaluating body could only propose to the court the removal or transfer of a judge to another court.

Conclusion: Awaiting Resolution

The opinion of the Venice Commission and DGI is not formally binding; however, it is difficult to expect that the government could entirely ignore it, especially as it was requested by the government. If it did, measures taken against the discussed group of judges could be challenged in the future, for example, in proceedings before the ECtHR. And, given that the ECtHR frequently refers to the opinions of the Venice Commission in its judgments, there would be a serious risk of finding a violation of the Convention.

Realistically speaking, given the President's strong opposition to any attempts to regulate irregular judicial appointments, a law introducing the verification procedure advocated by the Commission and DGI will likely not come into force before the end of his term in August 2025. The government therefore has almost a year to draft the necessary legislation. Given that the design of the verification procedure may still raise certain questions, it is possible that another opinion from the Venice Commission will be sought once the initial draft of the bill is prepared.

Marcin Szwed is an Assistant Professor at the Faculty of Law and Administration at the University of Warsaw and a lawyer at the Helsinki Foundation for Human Rights.

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Suggested citation: Marcin Szwed, ‘Restoring the Integrity of Judicial Appointments: the Venice Commission and Council of Europe's Opinion on Poland’, ConstitutionNet, International IDEA, 7 November 2024, https://constitutionnet.org/news/voices/restoring-integrity-poland-judicial-appointments

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